Voting Laws Roundup 2016 from The Brennan Center for Justice

The Brennan Center for Justice, tireless proponents of voting rights, have published a new updated “Voting Laws Roundup 2016.”

As they report:

At the beginning of the 2016 legislative session, and as of March 25, 2016, at least 422 bills to enhance voting access were introduced or carried over in 41 states plus the District of Columbia. Meanwhile, at least 77 bills to restrict access to registration and voting have been introduced or carried over from the prior session in 28 states.”

Notably, they find that “. . . restrictions in 17 states will be on the books for the first time in a presidential election in 2016.”

You can find the details on those restrictions here.

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Achievement Gap Between U.S. Richest and Poorest Students Growing Dramatically

NPR is running a series of stories on the nationwide school-funding imbalance, to explain what happens when many of America’s poorest students also attend its poorest schools.

Some of the information from the reports comes from “Is School Funding Fair? A National Report Card (NRC)”, released by the Education Law Center (ELC) on March 16, 2016 which found that “in most states, public school funding remains unfair and inequitable, depriving millions of U.S. students of the opportunity for school success.” One of the more disturbing findings of the report is that “Certain regions of the country exhibit a double disadvantage – many states with low funding overall add no additional funds for concentrated student poverty. These include Alabama, Mississippi, and Florida in the Southeast, and Colorado, Arizona, and New Mexico in the Southwest.”

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As Bruce Baker, the Rutgers University Graduate School of Education Professor who developed the report’s methodology, told NPR:

You’ve got highly segregated rich and poor towns. [They] raise vastly different amounts of local revenue based on their local bases . . .”

(Perhaps needless to add, richer students can also opt out of the public school system altogether, attending expensive magnet schools that provide them with even more of an advantage for colleges and their futures. In addition, they also have ready access to educational enhancements, such as computers, robotic courses, studies abroad, and the like, that poorer districts rarely see.)

Kentucky FIRST LEGO League’s State Robotics Competition

Kentucky FIRST LEGO League’s State Robotics Competition

In San Antonio Independent School District v. Rodriguez (411 U.S. 1, 1973), plaintiffs argued that the way schools are funded violates the U.S. Constitution’s equal protection clause, which says that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” In a split 5-4 decision, the Supreme Court ruled against Rodriguez, with Justice Lewis Powell delivering the opinion of the Court, averring there is no right to equal funding in education under the U.S. Constitution:

Nothing this Court holds today in any way detracts from our historic dedication to public education. We are in complete agreement with the conclusion of the three-judge panel below that “the grave significance of education both to the individual and to our society” cannot be doubted. [n69] But the importance of a service performed by the State does not determine whether it must be regarded as fundamental for purposes of examination under the Equal Protection Clause.”

Dissenting, Justice Thurgood Marshall wrote:

The Court today decides, in effect, that a State may constitutionally vary the quality of education which it offers its children in accordance with the amount of taxable wealth located in the school districts within which they reside. The majority’s decision represents an abrupt departure from the mainstream of recent state and federal court decisions concerning the unconstitutionality of state educational financing schemes dependent upon taxable local wealth. More unfortunately, though, the   majority’s holding can only be seen as a retreat from our historic commitment to equality of educational opportunity and as unsupportable acquiescence in a system which deprives children in their earliest years of the chance to reach their full potential as citizens. The Court does this despite the absence of any substantial justification for a scheme which arbitrarily channels educational resources in accordance with the fortuity of the amount of taxable wealth within each district.

. . .

I must once more voice my disagreement with the Court’s rigidified approach to equal protection analysis.”

Portrait of Supreme Court Thurgood Marshall (Photo by Bachrach/Getty Images)

Portrait of Supreme Court Thurgood Marshall (Photo by Bachrach/Getty Images)

Justices Brennan, Douglas, and White also dissented.

As law professor Camille Walsh argued in her analysis of the case [Camille Walsh, “Erasing Race, Dismissing Class: San Antonio Independent School District v. Rodriguez,” 21 La Raza L.J. (2011):

The Rodriguez claimants were low-income children and families of color whose school district was dramatically unequal in every respect when compared to the local, wealthy, white school district at issue in the case. The Court treated, however, the claims of race and class discrimination that the claimants put forward as entirely independent, and ignored the plaintiffs race claim in order to focus on class alone, which the Court dismissed as a category not entitled to constitutional protection. This article argues that the outcome in Rodriguez was directly tied to legal frameworks that negated the possibility of protecting more than one constitutional category at the same time. The Court’s decision provided an economic privacy and local fiscal control rationale that solidified the separation of race and class as categories of constitutional analysis, to the detriment of future claims at the intersection of race and class remedies for segregated and unequal schools.”

In the four decades since Rodriguez, as NPR observes, dozens of lawsuits have been filed in state courts, arguing that their funding systems are either unfair, inadequate or both.

Of note, in the 2011 case Lynch, et al. v. State of Alabama, et al. Judge C Lynwood Smith, Jr. of the U.S. District Court for the Northern District of Alabama wrote an 800-page opinion, in which he “excoriated Alabama’s funding system.” Still, as reported by NPR, “he found the plaintiffs were not entitled to relief from the court,” writing in his opinion:

This request for a remedy untethered to a constitutional violation, though sincere, misunderstands the nature of the judicial power. The courts are not empowered generally to ‘make things right.’ The district court’s jurisdiction was invoked by plaintiffs to recognize and remedy the constitutional wrongs alleged to exist in Alabama’s system of higher education. [emphasis in original.]

(According to The Southern Poverty Law Center, Alabama’s overall funding level is well below average, ranking 38 out of 49, even when adjusting for regional wages, economies of scale, and other factors.)

You can read more about the NPR series here, and follow along with new reports in the coming weeks.

April 22, 1987 – The U.S. Supreme Court Decides McCleskey v. Kemp

On this day in history, The U.S. Supreme Court handed down its decision on the case McCleskey v. Kemp (481 U.S. 279), which since has been widely criticized. (It was named one of the worst modern Supreme Court decisions by many sources: see, e.g., “roundups” of worse cases here and here.) Even the author of the decision, Justice Lewis Powell, stated later that he wished he could change his vote in this case.

Warren McCleskey, a black man, was convicted of murdering a white police officer in Georgia and sentenced to death.

In a writ of habeas corpus, McCleskey argued that a statistical study by law professor David Baldus, examining over 2000 murder cases in Georgia during the 1970s, showed substantial disparities in the imposition of the death penalty depending on the victim’s race, and smaller disparities associated with the defendant’s race. [Baldus, David C.; Pulaski, Charles; Woodworth, George, “Comparative Review of Death Sentences: An Empirical Study of the Georgia Experience,” Journal of Criminal Law and Criminology (Northwestern University) 74 (3): 661–753, 1983). Since that time, additional studies of other localities have confirmed that defendants who kill whites are more likely to be sentenced to death than those who kill blacks.] Specifically, controlling for thirty-nine nonracial variables, Baldus found that in Georgia, defendants charged with killing white victims were 4.3 times more likely to be condemned to death than defendants charged with killing black victims, and that black defendants were 1.1 times more likely to receive the death penalty than white defendants.

However, in a 5-4 decision authored by Justice Lewis F. Powell, Jr., the Court ruled against McCleskey. Justice Powell decided that the overall statistics offered insufficient proof for any particular case, writing:

The Court today holds that Warren McCleskey’s sentence was constitutionally imposed. It finds no fault in a system in which lawyers must tell their clients that race casts a large shadow on the capital sentencing process. The Court arrives at this conclusion by stating that the Baldus study cannot ‘prove that race enters into any capital sentencing decisions or that race was a factor in McCleskey’s particular case.’ . . . Since, according to Professor Baldus, we cannot say ‘to a moral certainty’ that race influenced a decision . . . we can identify only ‘a likelihood that a particular factor entered into some decisions,’ and ‘a discrepancy that appears to correlate with race.’ This ‘likelihood’ and ‘discrepancy,’ holds the Court, is insufficient to establish a constitutional violation. (emphasis in original)”

Associate Justice Lewis F. Powell, Jr.

Associate Justice Lewis F. Powell, Jr.

Justice Powell adduced four additional reasons he believed supported his decision:

…the desire to encourage sentencing discretion, the existence of ‘statutory safeguards’ in the Georgia scheme, the fear of encouraging widespread challenges to other sentencing decisions, and the limits of the judicial role.”

Three dissents were filed in the case, by Justices Brennan, Blackmun, and Stevens. Justice William Brennan’s passionate dissent is worth quoting at some length.

Part I of Brennan’s dissent states his belief that “the death penalty is in all [emphasis added] circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments.”  

Even aside from this consideration, Brennan did not agree that the prospects of equal treatment for black defendants in Georgia were fair and balanced, as it were. He emphasized that regardless of whether McCleskey could prove racial bias, the very likelihood of it should be sufficient for an Eighth Amendment claim:

Since Furman v. Georgia, 408 U.S. 238 (1972), the Court has been concerned with the risk of the imposition of an arbitrary sentence, rather than the proven fact of one. Furman held that the death penalty may not be imposed under sentencing procedures that create a substantial risk that the punishment will be inflicted in an arbitrary and capricious manner.”

Brennan adds his own statistical analysis of the findings, declaring:

. . . The rate of capital sentencing in a white-victim case is . . . 120% greater than the rate in a black-victim case. Put another way, over half — 55% — of defendants in white-victim crimes in Georgia would not have been sentenced to die if their victims had been black. Of the more than 200 variables potentially relevant to a sentencing decision, race of the victim is a powerful explanation for variation in death sentence rates — as powerful as nonracial aggravating factors such as a prior murder conviction or acting as the principal planner of the homicide.”

But, he goes on, there is more.

Data unadjusted for the mitigating or aggravating effect of other factors show an even more pronounced disparity by race. The capital sentencing rate for all white-victim cases was almost 11 times greater than the rate for black-victim cases. Furthermore, blacks who kill whites are sentenced to death at nearly 22 times the rate of blacks who kill blacks, and more than 7 times the rate of whites who kill blacks. In addition, prosecutors seek the death penalty for 70% of black defendants with white victims, but for only 15% of black defendants with black victims, and only 19% of white defendants with black victims. (emphasis in original)”

He concludes on this point:

The statistical evidence in this case thus relentlessly documents the risk that McCleskey’s sentence was influenced by racial considerations.”

He adds that in the case of Georgia, “the conclusion suggested by those numbers is consonant with our understanding of history and human experience.”

He then goes on to answer Justice Powell’s other objections to finding for McCleskey, which you can read here.

Associate Justice William J. Brennan, Jr.

Associate Justice William J. Brennan, Jr.

Justices Harry Blackmun and John Paul Stevens also dissented, deviating from Brennan in that they were not willing to rule out any death penalty cases. Brennan differed from Blackmun and Stevens in their belief that guidelines about what constituted “extremely aggravated cases” would minimize the risk of discriminatory enforcement of the death penalty and that “narrowing the class of death-eligible defendants is not too high a price to pay for a death penalty system that does not discriminate on the basis of race.”

Reverberations from the majority in the McCleskey decision reached far beyond the case of Warren McCleskey, creating a burden of proof almost impossible to meet. Blume, et al. argue that there are compelling reasons to read McCleskey narrowly. [John H. Blume, Theodore Eisenberg, and Sheri Lynn Johnson, “Post-McCleskey Racial Discrimination Claims in Capital Cases,” 83 Cornell L. Rev. 1771 (1998, available online here.) Nevertheless, they observe, “most lower courts rejects post-McCleskey capital-sentencing racial discrimination claims without any individualized analysis.” (Id., at 1780—1781.) Indeed, the entire process of the criminal justice system has continued to discriminate against blacks, from arrest, to treatment by police, to juror evaluation, to rates of imprisonment, to assignment of the death penalty.

According to The New York Times:

McCleskey is the Dred Scott decision of our time,’ Anthony G. Amsterdam, a law professor at New York University, said in speech last year at Columbia. ‘It is a decision for which our children’s children will reproach our generation and abhor the legal legacy we leave them,’ said Professor Amsterdam, who worked on the McCleskey case and many other capital punishment landmarks.”

As Blume et al. conclude (Id. at 1809-1810):

Fear of labeling state officials racist, the need for prosecutorial discretion, and general reluctance to address racial claims all may fuel the doctrinal missteps in post-McCleskey county-level cases. An understanding of courts’ reluctance is not, however, a reason to condone such action. Judges, especially federal judges, enjoy constitutionally protected independence precisely because they must make unpopular and difficult decisions. In the proud modern history of the judiciary, judges’ finest hours have come by challenging discrimination rather than sheltering it. It would be ironic if they now were to afford racial discrimination its greatest shelter, through heightened burdens of proof, in cases involving life and death.”

April 20, 1946 – The League of Nations Is Officially Disbanded

The League of Nations had been formed in 1919, and the final version of the Covenant of the League of Nations became Part I of the Treaty of Versailles, and could only begin to function, formally and officially, after the Peace Treaty of Versailles came into effect. Thus, the League of Nations was not officially inaugurated until January, 1920.

The 32 original Members of the League of Nations were also Signatories of the Versailles Treaty. In addition, 13 additional States were invited to accede to the Covenant. The League of Nations was open to all other States, providing they fulfilled certain requirements.

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The League was marked by notable failures, most glaringly, in preventing the invasion of Manchuria by Japan, the annexation of Ethiopia by Italy, and the onset of World War II. The powerlessness of the League contributed to the alienation from it by the Member States.

It did have a number of successes, however, including cooperative ventures that were transferred to the United Nations.

April 11, 1913 – President Wilson’s Administration Begins Government-Wide Segregation

During Woodrow Wilson’s 1912 presidential campaign, he promised fairness for blacks if elected, averring in a letter to a black church official:

Should I become President of the United States they may count upon me for absolute fair dealing for everything by which I could assist in advancing their interests of the race.”

However, less than a month after his March 4, 1913 inauguration, President Wilson’s Administration took the first steps towards segregating the federal service.

Woodrow Wilson

Woodrow Wilson

As PBS reports:

He dismissed 15 out of 17 black supervisors who had been previously appointed to federal jobs and replaced them with whites. He also refused to appoint black ambassadors to Haiti and Santa Domingo, posts traditionally awarded to African Americans. . . . Throughout the country, blacks were segregated or dismissed from federal positions.

The President’s wife, Ellen Wilson, was said to have had a hand in segregating employees in Washington, encouraging department chiefs to assign blacks separate working, eating, and toilet facilities. To justify segregation, officials publicized complaints by white women, who were thought to be threatened by black men’s sexuality and disease.”

 Ellen Louise Axson Wilson, born in Savannah, Georgia

Ellen Louise Axson Wilson, born in Savannah, Georgia

On this day in history, a closed cabinet meeting was held in which Postmaster General Albert S. Burleson argued for segregating the Railway Mail Service. In their train cars, the workers shared glasses, towels, and washrooms. Like Ellen Wilson, he considered such exposure by whites to be anathema.  President Wilson expressed no direct objections to Burleson’s segregation plans.

Shortly after the April 11 cabinet meeting, cabinet members Treasury Secretary William G. McAdoo and Postmaster General Albert S. Burleson proceeded to segregate employees in their departments. At Post Office Department headquarters in Washington, D.C. many African American employees were downgraded, fired, or transferred to the dead letter office, where they were out of public sight.

Postmaster General Albert S. Burleson

Postmaster General Albert S. Burleson


 
The segregation implemented in the Department of Treasury and the Post Office Department involved not only screened-off working spaces, but separate lunchrooms and toilets.

As soon as the Wilson Administration implemented federal segregation individuals and groups such as the National Association for the Advancement of Colored People (NAACP) began to lobby against the administration’s segregation policies. In response to NAACP protests Wilson replied that departmental segregation was “in the interest of the Negroes.” 

Wilson also defended the segregation policy in a series of letters in July and August to NAACP board chairman, Oswald Garrison Villard, claiming that:

We are rendering them more safe in their possession of the office and less likely to be discriminated against”. He also added that “Some of the most thoughtful colored men I have conversed with have themselves approved of this policy.”

April 9, 1866 – Congress Overrides President Andrew Johnson’s Veto of the Civil Rights Bill of 1866

On this date in history, the House of Representatives overrode President Andrew Johnson’s veto of the Civil Rights Bill of 1866 with near unanimous Republican support, 122 to 41, marking the first time Congress legislated upon civil rights.

The bill was introduced by Senate Judiciary Chairman Lyman Trumbull of Illinois, and mandated that “all persons born in the United States,” with the exception of American Indians and children born to foreign diplomats, were “hereby declared to be citizens of the United States.” The legislation granted all citizens the “full and equal benefit of all laws and proceedings for the security of person and property.”

Lyman Trumbull, United States Senator from Illinois

Lyman Trumbull, United States Senator from Illinois

Ironically, as historian Eric Foner noted in his 2015 book Gateway to Freedom:

Lyman Trumbull, now chair of the Senate Judiciary Committee, used the infamous 1850 statute [Fugitive Slave Act] as a model for the Civil Rights Act of 1866, which revolutionized American jurisprudence by establishing the principle of birthright citizenship and extending to black Americans many of the rights previously enjoyed exclusively by whites. To do so, Trumbull drew on the Fugitive Slave Act’s enforcement mechanisms and civil and criminal penalties, and the way it super-imposed federal power on state law in order to establish a national responsibility for securing constitutionally protected rights. ‘The act that was passed that time for the purposes of punishing persons who should aid Negroes to freedom,’ Trumbull declared, ‘is now to be applied . . . to the punishment of those who shall undertake to keep them in slavery.’” (p. 224)

President Johnson disagreed with the level of federal intervention implied by the legislation, calling it “another step, or rather a stride, toward centralization and the concentration of all legislative power in the national Government” in his veto message. Specifically, he wrote:

In all our history, in all our experience as a people living under Federal and State law, no such system as that contemplated by the details of this bill has ever before been proposed or adopted. They establish for the security of the colored race safeguards which go indefinitely beyond any that the General Government has ever provided for the white race. In fact, the distinction of race and color is by the bill made to operate in favor of the colored against the white race. They interfere with the municipal legislation of the States; with relations existing exclusively between a State and its citizens, or between inhabitants of the same State; an absorption and assumption of power by the General Government which, if acquiesced in, must sap and destroy our federative system of limited power, and break down the barriers which preserve the rights of the States. It is another step, or rather stride, towards centralization and the concentration of all legislative powers in the National Government.”

In other words, he is condemning this bill as “reverse discrimination” in favor of these people just released from slvery with no homes or resources, in addition to what he considers federal inference in relations between “capital and labor.” You can read his veto remarks here.

President Andrew Johnson

President Andrew Johnson

April 2, 1917 – The First Woman Assumes Her Seat in the U.S. House of Representatives

Jeannette Pickering Rankin, born in 1880, was the first woman ever elected to the U.S. Congress, initially in 1916 and again in 1940. She represented the state of Montana. It is no accident that her two successful elections coincided with the threat of U.S. engagement in world wars. Rankin was a pacifist, and strongly opposed any war.

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She was one of 56 members of Congress who voted against entry into World War I in 1917, and the only member of Congress to vote against declaring war on Japan after the attack on Pearl Harbor in 1941. Her vote caused such an uproar in the House that she hid in a nearby phone booth until she was rescued by the United States Capitol Police. Two days later when a similar war declaration against Germany and Italy came to vote, Rankin abstained. Her political career effectively over, she retired in 1942 rather than face a near-certain re-election defeat.

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Rankin was also active in the movement for women’s rights, and believed that the warlike behavior of nations was a result of the dearth of females in government.

Between and after her service in Congress, Rankin lobbied for pacifism as well as social welfare programs for women and children.

She died on May 18, 1973 at age 92.

Rankin's monument in the National Statuary Hall, Washington, D.C.

Rankin’s monument in the National Statuary Hall, Washington, D.C.

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